Opinion
23A-DN-2912
06-28-2024
Ronnie Romans, Appellant-Respondent v. Jade Romans, Appellee-Petitioner
ATTORNEYS FOR APPELLANT Jessie Cobb-Dennard Alexus L. Conboy Katherine A. Rich The Northside Law Firm Westfield, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Brown Circuit Court The Honorable Mary Wertz, Judge The Honorable Jennifer D. Wilson Reagan, Magistrate Trial Court Cause No. 07C01-2204-DN-112
ATTORNEYS FOR APPELLANT
Jessie Cobb-Dennard Alexus L. Conboy Katherine A. Rich The Northside Law Firm Westfield, Indiana
MEMORANDUM DECISION
TAVITAS, JUDGE
Case Summary
[¶1] Ronnie Romans ("Father") appeals, claiming that the trial court clearly erred by granting primary physical custody of the parties' daughter, R.R. ("Daughter"), to Jade Romans ("Mother") and by granting joint legal custody of Daughter to both parents. We disagree and, accordingly, affirm.
Issues
[¶2] Father presents two issues for our review, which we restate as:
I. Whether the trial court clearly erred by granting Mother primary physical custody of Daughter.
II. Whether the trial court clearly erred by granting the parties joint legal custody.
Facts
[¶3] Father and Mother met in August 2019, at which time Mother was twenty years old and Father was forty-two years old. The couple married in May 2021. On April 25, 2022, Father filed a petition for dissolution of the marriage. At that time, Mother was not yet pregnant. The parties reconciled for a time and lived together on and off. In August 2022, Mother learned that she was pregnant. Shortly thereafter, on November 17, 2022, Mother filed a pro se request for a final hearing on the dissolution petition.
[¶4] On January 30, 2023, the parties submitted a proposed final settlement agreement ("the Agreement") and waiver of the final hearing. Under the Agreement, Mother and Father expressly agreed that the then-unborn child was a child of the marriage and further agreed that, given Mother's mental health issues, Father would have primary legal and physical custody following the birth of their child while Mother underwent counseling and mental health treatment. Mother was not represented by counsel when she signed the Agreement. Mother subsequently obtained counsel and, on April 18, 2023, filed a petition to set aside the Agreement. The trial court held a hearing on Mother's petition on May 19, 2023, after which it set aside the provisions of the Agreement regarding child custody, child support, and parenting time.
[¶5] On May 20, 2023, Mother sent several text messages to Father, claiming that Father was jealous because he had seen a motorcycle parked in Mother's driveway. Mother also stated that she might be in labor. This caused Father to finally respond to Mother's messages and ask which hospital she planned to go to for the delivery. Despite repeated requests by Father, Mother refused to inform him of the hospital. Daughter was born on May 23, 2023. Father was not informed until after the birth.
[¶6] After Daughter's birth and discharge from the hospital, Mother restricted Father's access to the child. Mother told Father that he could only visit Daughter in Mother's home under Mother's supervision. Because Mother had previously accused Father of abuse, Father believed that if he went to Mother's home, he risked arrest based on Mother's false accusations. He therefore declined to go to Mother's home. As a result, from the time Daughter was discharged from the hospital until a June 15, 2023 hearing, Father saw Daughter only once-at a doctor's appointment that Mother also attended.
[¶7] At Father's request, the trial court began hearing evidence regarding child custody on June 15, 2023. The hearing was reset for conclusion of the evidence on August 9, 2023. When the trial court recessed the hearing on June 15, it issued a temporary order awarding the parties joint legal custody and granting Father parenting time every day from 5:00 p.m. to 7:00 p.m. The trial court also stated that the exchanges of Daughter should take place either on the property of an agreed-upon third party or in a public place, including the end of the parties' driveways. The trial court did not enter a child support order at that time because evidence had not yet been submitted regarding child support. The trial court did, however, order Father to provide Mother with diapers. The trial court reconvened the custody hearing on August 9, 2023, but again ran out of time and set the matter for further evidence on September 26, 2023.
A new magistrate presided over these hearing. Neither party objected to the hearing being presided over by two magistrates when given the opportunity to do so. Cf. LaMotte v. LaMotte, 200 N.E.3d 922, 928 (Ind.Ct.App. 2022) (holding that mother's due process rights were violated when new trial court judge issued final dissolution decree without having held a trial de novo after the departure of the original magistrate who conducted evidentiary hearing).
[¶8] The evidence included that Father's house, where he has lived for several years, has a bedroom designated and furnished for Daughter. Mother lives with her grandmother ("Grandmother') in Grandmother's home, which is located across the road from Father's home on West State Road 45 in Morgantown. Mother moved to Grandmother's house when Mother was pregnant with Daughter. Grandmother's home was originally a one-bedroom home, but Grandmother recently had an addition constructed with what she described as "two and a half" additional bedrooms. Tr. Vol. II p. 113.
[¶9] Much of the evidence focused on Mother's mental health and behavior. Mother has attempted suicide once previously and has threatened suicide several times to Father. Father fears for Daughter's safety while in Mother's care. Father testified that, when Mother was pregnant with Daughter, Mother falsely told Father that she had miscarried and that Mother too would soon be dead. Mother also sent Father a photo of a bottle of pain medication and suggested that she had taken all of the pills to end her life. Sometime in 2019 or 2021, depending on the parties' recollection, Mother sent Father a text message stating that she had "pulled the trigger and it didn't do anything." Petitioner's Ex. 5. Since Daughter's birth, Mother has undergone therapy and, at the hearings in this matter, Mother claimed that her mental health was "perfect." Tr. Vol. II p. 127.
[¶10] Mother also displayed frequent bursts of anger and an inability to control her temper, often screaming at Father. When confronted with this evidence at the evidentiary hearings, Mother denied the allegations and claimed that she only "got loud." Id. at 182. Mother told Father that she was diagnosed with bipolar disorder, post-traumatic stress disorder, and major depressive disorder. Mother later stated, however, that she had never formally been diagnosed with bipolar disorder. Father testified that, when Mother took medication for her mental illnesses, her behavior dramatically improved. He also believed that Mother could be a good mother if she took her medication and took care of her mental health. Mother had stopped taking all of her medications when she found out she was pregnant with Daughter and did not take her medications again until after Daughter was born. At the time of the evidentiary hearings, Mother was taking Zoloft for her depression.
[¶11] Mother's therapist, Jennifer Smith, diagnosed Mother with post-traumatic stress disorder and major depressive disorder. Smith also believed that Mother had been in an abusive relationship with Father. Smith acknowledged, however, that her beliefs were based solely on Mother's reports. Smith was surprised when confronted with evidence that Mother initiated many of the confrontations with Father and that Mother had been arrested for battering Father.
[¶12] Both Mother and Father have been arrested for domestic disturbances. Mother was convicted of domestic battery resulting in bodily injury, a Class A misdemeanor, as a result of an incident on June 25, 2021, when she punched Father in the nose. Father was convicted of disorderly conduct based on an incident on March 27, 2022, at which time Father had a blood alcohol content of 0.13. Mother and Grandmother accused Father of having a drinking problem. Father admitted to drinking with Mother during the marriage, but he denied he had a drinking problem. Father video recorded an incident in which Mother admitted that she had hit Father several times yet did not get arrested. In the video, Mother asked why Father no longer wanted to be in a relationship with her. Father explained to Mother that he was afraid that Mother would make false accusations against him.
Father was again arrested on May 2, 2022, but the State never filed charges regarding the incident resulting in the arrest.
[¶13] Father's ex-wife, Heather Romans, testified that Father was a good parent and was current on his child support. Father's adult son, Nathaniel, testified that Father was a good but strict parent and that Father was a loving parent toward Daughter.
[¶14] Regarding child support, the evidence revealed that Father earned $2,100 per week and provides health insurance for Daughter. Father pays $178 per week in child support for his other minor children. Mother was unemployed but attempting to start an in-home crafting business. Mother was last employed in 2021, when she worked at CVS at a rate of $13 per hour. Mother claims that she applied to over seventy positions before Daughter's birth but failed to find employment.
[¶15] Mother generally has an overall contemptuous attitude toward Father and his ability to parent. Mother evidenced no interest in Father having parenting time with Daughter. Mother was generally the aggressive party in her communications with Father. As described by the trial court, "Mother made mistakes of fact, antagonized Father, picked fights, and was irrational." Appellant's App. Vol. II p. 50. Mother has been inflexible with parenting time and has refused to let Father spend time with Daughter even when Mother was unable to care for Daughter. Instead, Mother let Grandmother watch Daughter. Mother repeatedly referred to Daughter as "my child," "my daughter," and "my baby," and told Father, "I say when and where [Daughter] goes." Id. When Father tried to correct Mother and reminded her that she was both parties' daughter, Mother replied, "she's not our daughter, she's my daughter because I'm the one raising her and I'm the only one keeping her alive so go cry to your lawyer and leave me alone." Id. Both parties resorted to calling each other derogatory names in text messages.
[¶16] Father conveyed a desire to co-parent but claimed that Mother's behavior made this impossible. Father also expressed remorse for using derogatory language toward Mother. Mother expressed no such remorse, became defensive when questioned about it, and attempted to justify her language. Although the parties live extremely close to one another, Mother chose a location for the exchange of the child that was approximately twenty minutes away, causing Father to spend much of his allotted parenting time driving to and from the location.
[¶17] On May 26, 2023, the trial court entered findings of fact and conclusions thereon in which it granted the parties joint legal custody. The trial court also granted shared physical custody, with Mother having primary physical custody of Daughter. Father was granted parenting time pursuant to the Indiana Parenting Time Guidelines, with an additional weekly overnight visitation of at least twenty-four hours. The trial court imputed income to Mother based on her prior employment and ordered Father to pay $187 per week in child support. Father now appeals.
Discussion and Decision
Standard of Review
[¶18] We first note that Mother has not filed an appellee's brief. In such cases, we will not develop an argument for the appellee but instead will reverse the trial court's judgment if the appellant's brief presents a case of prima facie error. Hahn-Weisz v. Johnson, 189 N.E.3d 1136, 1140-41 (Ind.Ct.App. 2022) (citing Salyer v. Washington Regular Baptist Church Cemetery, 141 N.E.3d 384, 386 (Ind. 2020)). In this context, prima facie means at first sight, on first appearance, or on the face of it. Id. (citing Salyer, 141 N.E.3d at 386). "This less stringent standard of review 'relieves [us] of the burden of controverting arguments advanced in favor of reversal where that burden properly rests with the appellee.'" Id. (quoting Jenkins v. Jenkins, 17 N.E.3d 350, 352 (Ind.Ct.App. 2014)). We remain obligated, however, to correctly apply the law to the facts in the record to determine whether reversal is required. Id. (citing Jenkins, 17 N.E.3d at 352).
[¶19] "'Appellate deference to the determinations of our trial court judges, especially in domestic relations matters, is warranted because of their unique, direct interactions with the parties face-to-face, often over an extended period of time.'" Hahn-Weisz, 189 N.E.3d at 1141) (quoting Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011)). "'Thus enabled to assess credibility and character through both factual testimony and intuitive discernment, our trial judges are in a superior position to ascertain information and apply common sense, particularly in the determination of the best interests of the involved children.'" Id. (quoting Best, 941 N.E.2d at 502).
Additionally, there is a well-established preference in Indiana for granting latitude and deference to our trial judges in family law matters. Appellate courts are in a poor position to look at a cold transcript of the record, and conclude that the trial judge, who saw the witnesses, observed their demeanor, and scrutinized their testimony as it came from the witness stand, did not properly understand the significance of the evidence. On appeal it is not enough that the evidence might support some other conclusion, but it must positively require the conclusion contended for by appellant before there is a basis for reversal.Steele-Giri v. Steele, 51 N.E.3d 119, 124 (Ind. 2016) (citations and internal quotations omitted).
[¶20] The trial court here issued findings of fact and conclusions thereon pursuant to Indiana Trial Rule 52(A), which prohibits a court on appeal from setting aside the trial court's judgment unless the judgment is clearly erroneous. Hoover v. Ferrell, 224 N.E.3d 968 (Ind.Ct.App. 2023) (citing Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996)). A trial court's findings of fact are clearly erroneous only when the record contains no facts to support them either directly or by inference. Id. A trial court's judgment is clearly erroneous only if its findings of fact do not support its conclusions of law or its conclusions of law do not support its judgment. Id.
I. The trial court did not clearly err by granting Mother primary physical custody.
[¶21] Father first argues that the trial court clearly erred by granting Mother primary physical custody. Indiana Code Section 31-17-2-8 controls the determination of child custody and provides:
The court shall determine custody and enter a custody order in accordance with the best interests of the child. In determining the best interests of the child, there is no presumption favoring either parent. The court shall consider all relevant factors, including the following:
(1) The age and sex of the child.
(2) The wishes of the child's parent or parents.
(3) The wishes of the child, with more consideration given to the child's wishes if the child is at least fourteen (14) years of age.
(4) The interaction and interrelationship of the child with:
(A) the child's parent or parents;
(B) the child's sibling; and
(C) any other person who may significantly affect the child's best interests.
(5) The child's adjustment to the child's:
(A) home;
(B) school; and
(C) community.
(6) The mental and physical health of all individuals involved.
(7) Evidence of a pattern of domestic or family violence by either parent.
(8) Evidence that the child has been cared for by a de facto custodian, and if the evidence is sufficient, the court shall consider the factors described in section 8.5(b) of this chapter.
(9) A designation in a power of attorney of:
(A) the child's parent; or
(B) a person found to be a de facto custodian of the child.
Here, the trial court explicitly addressed each of these factors in its custody order. Father focuses his argument on the sixth and seventh factors-the mental and physical health of all individuals involved and evidence of a pattern of domestic or family violence by either parent.
[¶22] Father argues that the trial court's findings detail Mother's disdainful behavior and evidence her mental health problems. Father references Mother's suicide threats and attempts, her continued harassment of Father, and her refusal to cooperate with him. Father details three instances evidencing Mother's mental health problems. The first of these occurred when Mother repeatedly called Father over seventy times in one day and left several text messages accusing Father of being jealous. When Father did not respond, Mother claimed to be going into labor. Father responded to confirm whether Mother was going to the hospital. Mother refused to tell Father if she was going to the hospital, but also asked him to be there for her.
[¶23] Father testified regarding additional incidents that occurred during the parenting time exchanges. On July 22, 2023, Father arrived at the exchange location-the local sheriff's department-to pick up Daughter from Mother. Father arrived early and was in his vehicle when Mother pulled her car next to Father's car. After waiting several minutes for Mother to act, Father finally opened the back door of Mother's car to retrieve Daughter. Mother became upset because it was not yet precisely the time scheduled for the exchange. Accordingly, she began to scream at Father, took Daughter, and went inside the sheriff's department to get a deputy. Mother later admitted that her behavior was an overreaction. Then, on September 7, 2023, Father was late to the scheduled exchange. When Father did arrive, Mother screamed and cursed at him while she was holding Daughter. Father also notes that Mother has a history of domestic violence toward Father, referring to the incident in which Mother punched Father in the nose and was arrested and subsequently convicted for battery.
[¶24] Father argues that the trial court's decision to grant primary physical custody is not supported by the evidence. Essentially, Father asks us to take the facts as found by the trial court and weigh them in a manner differently than did the trial court, which we may not do. We agree with Father that there was ample evidence before the trial court that would have supported a conclusion different from that reached by the trial court. But the question before us is not whether the evidence might have supported some other conclusion; it is whether the evidence positively requires the conclusion contented for by Father. Steele-Giri, 51 N.E.3d at 124. Given the great deference we afford trial courts in family law matters, we cannot say that Father has established prima facie error in the trial court's decision to grant Mother primary physical custody of Daughter.
II. The trial court did not clearly err by granting the parties joint legal custody.
[¶25] Father also argues that the trial court clearly erred by granting the parties joint legal custody of Daughter. Joint legal custody means "that the persons awarded joint custody will share authority and responsibility for the major decisions concerning the child's upbringing, including the child's education, health care, and religious training." Ind. Code § 31-9-2-67. A trial court may grant joint legal custody "if the court finds that an award of joint legal custody would be in the best interest of the child." Ind. Code § 31-17-2-13
[¶26] When determining whether a grant of joint legal custody would be in the best interest of the child, the trial court shall consider the following factors:
The trial court "shall consider it a matter of primary, but not determinative, importance that the persons awarded joint custody have agreed to an award of joint legal custody." Ind. Code § 31-17-2-15. Here, as the parties did not agree to joint legal custody, this provision is inapplicable.
(1) the fitness and suitability of each of the persons awarded joint custody;
(2) whether the persons awarded joint custody are willing and able to communicate and cooperate in advancing the child's welfare;
(3) the wishes of the child, with more consideration given to the child's wishes if the child is at least fourteen (14) years of age;
(4) whether the child has established a close and beneficial relationship with both of the persons awarded joint custody;
(5) whether the persons awarded joint custody:
(A) live in close proximity to each other; and
(B) plan to continue to do so; and
(6) the nature of the physical and emotional environment in the home of each of the persons awarded joint custody.
[¶27] We have previously explained that:
Our courts have reiterated that factor (2), whether the parents are willing and able to cooperate in advancing the child's welfare, is of particular importance in making legal custody determinations. Where the parties have made child-rearing a battleground, then joint custody is not appropriate. Indeed, to award joint legal custody to individually capable parents who cannot work together is tantamount to the proverbial folly of cutting the baby in half in order to effect a fair distribution of the child to competing parents.J.W. v. M.W., 77 N.E.3d 1274, 1278 (Ind.Ct.App. 2017) (citations and internal quotations omitted).
[¶28] Here, the trial court evaluated in its findings each of these factors as follows:
20. The fitness and suitability of each of the persons awarded joint custody: The Court's primary concern is Mother's refusal
to include Father in [Daughter]'s major life events and decisions, such as her birth and vaccinations. The Court is hopeful that with a better understanding of the Court's expectations and Indiana law, Mother will improve in this regard. The Court is also concerned about Mother's mental health, but finds that she is currently engaged in treatment and therefore this concern is not significant enough at this time to restrict Mother's parenting time or custody. Father is a fit and suitable legal custodian. The Court finds that both parents are both fit and suitable to serve as legal custodian of [Daughter].
21. Whether the persons awarded joint custody are willing and able to communicate and cooperate in advancing the child's welfare: The Court acknowledges the volatile relationship between the parties. The Court finds that this volatility may be related to the ongoing litigation. The Court finds that there exists periods of good, productive communication and co-parenting. Both parties expressed a willingness to try to work together, and that with continued mental health treatment and co-parenting counseling, this could improve. The Court agrees with the parties, and additionally finds that with the resolution of the litigation and the structure provided by this order, things could improve. Therefore, the Court finds that the parties are willing and able to communicate and cooperate in advancing [Daughter]'s welfare.
22. The wishes of the child (as age appropriate): [Daughter] is an infant, therefore this element is not applicable to this case.
23. Whether the child has established a close and beneficial relationship with both of the persons awarded joint custody: The Court finds that due to both parents having had parenting time daily almost [Daughter]'s entire life, [Daughter] has established a close and beneficial relationship with both of the parents.
24. Whether the persons awarded joint custody live near one another and whether they plan to continue to do so: The Court
finds that the parties live across the street from one another, and therefore this element is satisfied.
25. The nature of the physical and emotional environment in the home of each of the persons awarded joint custody: The Court has concerns over Mother's rage and mental health and the effect this has on [Daughter]. However, Mother lives with Grandmother, who seems to provide stability to the household. Furthermore, Mother is in mental health treatment. The Court is also concerned with the fact that Mother and [Daughter] share a room at her house, however, due to [Daughter] being an infant this is not an overwhelming concern at this time. The Court finds that Father's home is an appropriate physical and emotional environment.
Appellant's App. Vol. II pp. 56-57.
[¶29] Father claims that, given the nature of his and Mother's relationship, the trial court clearly erred by granting the parties joint legal custody. The trial court, however, addressed this in its findings and noted that despite the volatility, there had been periods of productive communication and co-parenting and that both parties indicated a willingness to work together. The trial court also found that, with Mother's continued mental-health treatment and co-parenting counseling, the situation should improve. Father's argument is simply a request that we weigh the parties' communication difficulties and dislike for each other more heavily than the other factors and come to a different conclusion than the trial court did. Again, given the wide latitude afforded trial courts in family law matters, we cannot say that Father has established prima facie error in the trial court's grant of joint legal custody.
Conclusion
[¶30] The trial court did not clearly err by granting Mother primary physical custody or by granting the parties joint legal custody. Accordingly, we affirm the trial court's judgment.
[¶31] Affirmed.
Crone, J., and Bradford, J., concur.